Milewski v. Kansas Gas & Electric Co., 85-ERA-21 (Sec'y Jan. 15, 1988)

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USDOL/OALJ Reporter
Milewski v. Kansas Gas & Electric Co., 85-ERA-21 (Sec'y Jan. 15, 1988)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: January 15, 1988
CASE NO. 85-ERA-0021

IN THE MATTER OF

DANIEL MILEWSKI,
COMPLAINANT,

KANSAS GAS AND ELECTRIC COMPANY,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

ORDER TO SUBMIT INFORMATION

On October 4, 1985, Administrative Law Judge (ALJ) George A. Fath issued an order¹ dismissing the above-captioned case, which arises under the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851 (1982). The basis of this order was a Joint Motion to Dismiss seeking the dismissal of the complaint with prejudice and the vacating of the Department of Labor's preliminary findings of May 29, 1985. The motion states that Complainant withdraws his complaint against Respondent and that, upon the granting of the joint motion, Respondent will withdraw his request for hearing.

The Joint Motion states that it is filed pursuant to 29 C.F.R. § 18.39(b) of the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18 (1986), which permits dismissal of a request for hearing "upon its abandonment or settlement by the party or parties who filed it." There is, however, no indication in either the Joint Motion or in the ALJ's order whether the basis of the joint dismissal request is abandonment or settlement.

In view of the fact that the preliminary finding was in favor of Complainant and that Respondent requested the hearing, it appears likely that a settlement between the parties underlies the Joint Motion. If this is the case, it is necessary that the settlement agreement be submitted to me ² for a determination of whether the terms of the settlement are fair, adequate and reasonable. See Secretary's Order to Submit Settlement Agreement, issued May 11, 1987, in Macktal v. Brown Root, Inc., No. 86-ERA-23.

[Page 2]

Therefore, if the parties desire to resolve this matter by mutual agreement, they should submit, within 30 days from receipt of this order, an explanation of the basis for their Joint Motion, and, if the basis of that motion is an agreement between the parties, a copy of the settlement agreement signed by both parties, including Complainant individually, and setting forth all the terms and conditions agreed to. If all parties, including Complainant individually, have not signed the settlement agreement itself, the parties shall submit a certification of stipulation, signed by all parties to the agreement, including Complainant individually, attesting to the veracity of the contents of the agreement.

SO ORDERED.

ANN MCLAUGHLIN
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹Under the regulations implementing the ERA, the ALJ issues a recommended decision and order which is forwarded to me for review and the issuance of a final order. See 29 C.F.R. § 24.6 (1986).

²Section 5851(b)(2)(A) of 42 U.S.C. provides in pertinent part that The Secretary shall, unless the proceeding is terminated by the Secretary on the basis of a settlement entered into by the Secretary . . . issue an order either providing the relief prescribed by subparagraph (B) or denying the complaint." (emphasis added).